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2001 DIGILAW 654 (JHR)

Ramji Singh I v. Union Of India

2001-09-12

M.Y.EQBAL

body2001
ORDER M.Y. Eqbal, J. 1. Heard Mr. Tapen Sen, learned counsel for the petitioner and Mrs. Sheela Prasad, learned Additional Standing Counsel, Central Government. 2. The petitioner seeks issuance of a writ of mandamus directing the respondents to accept the joining of the petitioner in the office of the respondent No. 3, Regional Commissioner. Coal Mines Provident Fund, Dhanbad and further for payment of the entire amount of salary which has been withheld since April 90 and also for quashing the office order dated 7.9.2000 withholding two increments of the petitioner with cumulative-effect. 3. The fact of the case lies in a narrow compass. 4. The petitioner was serving as Upper Division Clerk in the office of the respondent No. 3 at Dhanbad. By office order dated 1.8.1988 the petitioner alongwith others transferred from Dhanbad to Nagpur. Against the order of transfer the petitioner filed representation on 9.8.1988 and 11.8.1988. The petitioners case is that in spite of the order of transfer the relieving order was never served upon him and he continued on duty at Dhanbad and consequently he could not join at Nagpur. It is stated that even in 1992 the petitioner wrote letter to the Commissioner and met him in Chamber informing him that he had not been relieved and continuing in Dhanbad but the salary has not been paid to him. It appears that because of disobedience of the order of transfer a proceeding was initiated against the petitioner at Nagpur and he was charged for dereliction of duty at Nagpur even after the order of transfer. The enquiry report was submitted by the Enquiry Officer, who found the petitioner guilty of the charges. A copy of the enquiry report dated 14.7.1997 has been annexed as Annexure 5/1 to the writ application. It appears that a parallel enquiry was initiated by the respondents at Dhanbad on the same charges in which the petitioner participated. The enquiry officer, after considering the entire facts and evidences, came to the conclusion that the charge levelled against the petitioner has not been proved. The respondents, thereafter, issued the impugned letter dated 4/7.9.2000 imposing punishment of withholding two increments with cumulative effect, and further refused to allow the petitioner to join at Dhanbad. Copies of these two letters have been annexed as Annexures 6 and 7 to the writ petition. 5. The respondents, thereafter, issued the impugned letter dated 4/7.9.2000 imposing punishment of withholding two increments with cumulative effect, and further refused to allow the petitioner to join at Dhanbad. Copies of these two letters have been annexed as Annexures 6 and 7 to the writ petition. 5. The case of the respondents in the counter affidavit is that the petitioner challenged the order of transfer by filing Title Suit No. 123/88 in the Court of Munsif, Dhanbad which was ultimately dismissed. After the dismissal of the title suit the petitioner was relieved vide office order dated 29.3.1990 and was directed to join at Nagpur but he did not report for duty till date. 6. After considering the pleadings of the parties and hearing the counsels, two questions fall for consideration before this Court: firstly, whether the office order imposing punishment of withholding two increments with cumulative effect is justified and secondly, whether the petitioner was rightly not allowed to join in Dhanbad office. 7. The enquiry officer in the proceeding initiated at Nagpur had recorded a categorical finding that after dismissal of Title Suit No. 123/88 the petitioner was relieved from Dhanbad with effect from 4.4.1990 with a direction to report for duty in the Regional Office Nagpur. However, the enquiry officer in the proceeding at Dhanbad has come to the finding that the presenting officer could prove only that the charge officer was relieved on 4.4.1990 from Dhanbad Office but he did not submit any leave application for his absence from office. Despite the above finding the enquiry officer held that the charges of unauthorised absence and violation of rule does not have sufficient ground to prove. This Court is, therefore, of the view that the respondents have taken a very lenient view by imposing minor punishment of withholding of increments. 8. So far refusal by the respondents to allow the petitioner at Dhanbad and payment of salary are concerned, in my considered opinion, the petitioner is not entitled to any of the reliefs claimed by him. 9. Admittedly the petitioner has not challenged the legality and validity of the transfer order rather his case is that against the order of transfer he filed representation and further that he could not join at Nagpur because of the fact that he was not relieved from Dhanbad. 9. Admittedly the petitioner has not challenged the legality and validity of the transfer order rather his case is that against the order of transfer he filed representation and further that he could not join at Nagpur because of the fact that he was not relieved from Dhanbad. It has been sufficiently proved that the petitioner had challenged the order of transfer by filing Title Suit No. 123/88 which was ultimately dismissed. After the dismissal of the suit the petitioner was relieved from Dhanbad with effect from 4.4.1990 but he could not join at Nagpur. In such a situation, this court is of the view that unless it is proved that the petitioner continued to work at Dhanbad even after the order of transfer, the question of payment of salary does not arise. 10. In similar circumstances the Apex Court in the case of State Bank of India v. Anjan Sanyal, (2001) 5 SCC 508 , observed :-- "In the latter Constitution Bench decision also, the court was considering whether workers having been on strike, wages could be paid or the theory of "no work no pay" would apply. Mr. Ray contended that the ratio in the aforesaid case is that unless the Rules permit, the respondent would be entitled to the salary, in the Constitution bench decision, the court has observed that to entitle the workmen to the wages for the strike period, the strike has to be held both legal and justified and whether the strike is legal or justified are questions of fact to be decided on the evidence on record. Applying the same to the facts of the present case, the order of transfer having been held by us to be valid and the employee having not obeyed the same, and not having discharged the duties, but yet continuing in service how the period should be dealt with, will depend upon the relevant Rules and Regulations of the Bank. We are told that the State Bank of India Officers Service Rules deal with the said situation, and therefore, the competent authority of the Bank would deal with the same. But we have no hesitation in setting aside the directions of the High Court, directing the Bank to pay the salary and other benefits to the respondent in the case in hand. But we have no hesitation in setting aside the directions of the High Court, directing the Bank to pay the salary and other benefits to the respondent in the case in hand. In the aforesaid premises, we set aside the judgment of the learned Single Judge as well as that of the Division Bench of the Calcutta High Court and allow this appeal. The writ petition field by the respondent in the High Court stands dismissed." 11. Having regard to the facts and circumstances of the case and the discussions made hereinabove, no relief can be granted to the petitioner. The writ application is accordingly dismissed. The petitioner is directed to immediately join the transferred place of posting within two weeks from today. He shall be at liberty to file representation for payment of salary for the period he worked at Dhanbad and such representation shall be disposed of in accordance with law. 12. Writ Application dismissed.